A mental disorder of a kind or degree warranting confinement: examining justifications for psychiatric detention

Abstract

It has long been the case in jurisprudence under the European Convention on Human Rights that mental disorder must be of a certain severity in order to justify detention, but there has been little meaningful debate as to what that means. The question is relevant not merely to the European Court of Human Rights, but also to the Committee for the Prevention of Torture, as the potential of inhuman or degrading treatment that arises from the coercive elements in institutions is particularly clear if persons are wrongfully detained in an institution and ought in fact to be somewhere else. Considerable improvement in the substantive clarity of domestic law is therefore required. The specifics of the domestic standards are a matter for individual governments but, within the Council of Europe, they will need to meet the requirements of both the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities. The article considers the traditional justifications for civil detention in psychiatry – dangerousness, need for treatment and capacity – in the light of these two conventions.

Keywords:

• mental health
• mental disability
• psychiatric detention
• European Committee for the Prevention of Torture
• dangerousness
• mental capacity
• United Nations Convention on the Rights of Persons with Disabilities
• European Convention on Human Rights

Notes

For a discussion of these cases, see P Bartlett, O Lewis and O Thorold, Mental Disability and the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2007), particularly chapter 2.

See, for example, Hutchison Reid v. the United Kingdom, Application no. 50272/99, judgment 20 May 2003, (2003) 37 EHRR 9.

Sunday Times v. the United Kingdom, Application no. 6538/74, judgment 26 April 1979, (1979) 2 EHRR 245, para 49.

See, for example, Mouisel v. France, Application no. 67263/01, judgment 14 November 2002, para 48; Yankov v. Bulgaria, Application no. 39084/97, judgment 11 December 2003, para 120; Valasinas v. Lithuania, Application no. 44558/98, judgment 24 July 2011, para 117; and Van der Ven v. the Netherlands, Application no. 50901/99, judgment 4 February 2003, para 62.

See, for example, Herczegfalvy v. Austria, Application no. 10533/83, judgment 24 September 1992, para 82; and Keenan v. the United Kingdom, Application no 27229/95, judgment 3 April 2001, para 111.

For a discussion of the CRPD in the context of mental health and mental capacity law, see Peter Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’, forthcoming Modern Law Review (2012).

For a clear example of this approach, see CoE Rec(2004)10, in particular recommendations 17 and 18 regarding compulsory admission and treatment of persons with a mental disorder.

On this point, see the various reports of the Mental Disability Advocacy Center on guardianship, psychiatric admissions, and other forms of psychiatric compulsion, http://www.mdac.info.

See, for example, Annual Report of the High Commissioner for Human Rights to the General Assembly, A/HRC/10/49, presented 26 January 2009, paras 48–49. See also UN, Office of the High Commissioner for Human Rights, ‘Persons with Disabilities’, Dignity and Justice for Detainees Week, Information Note No. 4 (2008) p. 2, http://www.ohchr.org/EN/UDHR/Documents/60UDHR/detention_infonote_4.pdf, accessed 26 July 2009.

S Priebe et al., ‘Patients’ Views and Readmissions 1 Year after Involuntary Hospitalisation', British Medical Journal 194 (2009): 49. The authors consider that this may in fact be higher than the actual number, as roughly half of their original sample dropped out before the interview at the one-year period.

See W Gardner, C Lidz et al., ‘Patients’ Revisions of their Beliefs about the Need for Hospitalization', American Journal of Psychiatry 156 (1999): 1385; and W Gardner and C Lidz, ‘Gratitude and Coercion between Physicians and Patients’, Psychiatric Annals 31 (2001): 125.

C Katsakou et al., ‘Treatment Satisfaction among Involuntary Patients’, Psychiatric Services 61 (2010): 286, 290. This study also finds that the relevant measure of coercion is the perceived coercion by the service user, not the formal legal mechanism, reminding us of the complex relationship between legal mechanisms and the experience of coercion.

See R Kayess and P French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’, Human Rights Law Review 8 (2008): 1, 21.

Annual Report of the High Commissioner, para 49.

Regarding the tension between the CRPD and the ECHR on this point, see P Fennell and U Khaliq, ‘Conflicting or Complementary Obligations? The UN Disability Rights Convention, the European Convention on Human Rights and English Law’, European Human Rights Law Review (2011): 662.

CM(2004)97, Art 17.

Hutchison Reid v. the United Kingdom, Application no. 50272/99, judgment 20 May 2003, (2003) 37 EHRR 9.

Rec(2004)10, recommendation 17(1).

Regarding risk assessments and risk indicators generally, see J Langan, ‘Challenging Assumptions about Risk Factors and the Role of Screening for Violence Risk in the Field of Mental Health’, Health, Risk and Society 12 (2010): 85.

RSO 1990, c M-7.

The ECHR does appear to allow some preventive detention under Article 5 in a criminal context: M v Germany (2010) 51 EHRR 41. When Germany attempted to implement this decision, however, it found it necessary to use the concept of mental disability. See K Drenkhan, C Morgenstern and D van Zyl Smit, ‘What is in a Name? Preventive Detention in Germany in the Shadow of European Human Rights Law’, Criminal Law Review (2012) no. 3: 167. It is precisely the move to the use of that concept that is contrary to the CRPD, however.

Rec(2004)10, recommendation 17(1)(iii).

See, for example, Mental Health Act 1983, s 3(2)(d) [England and Wales], as amended 2007.

CPT Standards, CPT/Inf/E (2002) 1, Rev 2004, p. 57, para 41. For a similar point, see also Council of Europe Recommendation R (99) 4, Principles 22(1), 23(1).

For a discussion of these issues in the related context of compulsory treatment, see Peter Bartlett, ‘The Necessity must be Convincingly Shown to Exist: Standards for Compulsory Treatment for Mental Disorder under the Mental Health Act 1983’, Medical Law Review 19 (2011): 514, available on open access at http://medlaw.oxfordjournals.org/content/19/4/514.

See J Dawson and G Szmukler, ‘Fusion of mental health and incapacity legislation’, British Journal of Psychiatry 188 (2006): 504. Capacity forms part of the admission criteria in both Scotland (see Mental Health (Care and Treatment) Act (Scotland) 2003, 2003 asp 13, s. 36(4)(b)) and France (Loi no 90-527 du 27 juin 1990, Art.L.333), although both these statutes have additional requirements prior to detention.

For a critical analysis of capacity as a criterion for psychiatric detention, see Peter Bartlett, ‘The Test of Compulsion in Mental Health Law: Capacity, Therapeutic Benefit and Dangerousness as Possible Criteria’, Medical Law Review 11 (2003): 326.

R Cairns et al., ‘Reliability of Mental Capacity Assessments in Psychiatric In-patients’, British Journal of Psychiatry 187 (2005): 372.

G Owen et al, ‘Retrospective Views of Psychiatric In-patients Regaining Mental Capacity’, British Journal of Psychiatry, 195 (2009): 403.

For an examination of potential ways forward given this interpretation, see M Bach and L Kerzner, ‘A New Paradigm for Protecting Autonomy and the Right to Legal Capacity’, report to the Law Commission of Ontario, 2010, http://www.lco-cdo.org/en/disabilities-call-for-papers-bachkerzner, accessed 16 August 2011.

Rec(2004)10, rec 17(1)(iv).

These may themselves raise issues under the CRPD. See the right to live in the community (Art 19), and the right to an adequate standard of living (Art 28).

I Goffman, Asylums (London: Penguin, 1967).